Citation Nr: 1334352 Decision Date: 10/29/13 Archive Date: 11/06/13 DOCKET NO. 12-35 104 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Sioux Falls, South Dakota THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD A. Larson, Associate Counsel INTRODUCTION The Veteran had active service in the Navy from June 1966 to November 1968. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Sioux Falls, South Dakota, which denied service connection for the Veteran's tinnitus. The Board has reviewed the Veteran's electronic record (Virtual VA) prior to rendering a decision in this case. It does not contain any evidence not already in the claims folder or considered by the RO. FINDINGS OF FACT 1. The Veteran currently suffers from tinnitus. 2. He competently and credibly reported excessive noise exposure while in-service. Additionally, he served as part of the Navy "Seabees" construction unit. 3. The weight of the competent evidence is in relative equipoise as to whether his current tinnitus is related to service. CONCLUSION OF LAW The criteria for service connection for tinnitus have been met. 38 U.S.C.A. §§ 1110, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). In this decision, the Board grants service connection for tinnitus. This award represents a complete grant of the benefits sought on appeal. Thus, any deficiency in VA's compliance is deemed to be harmless error, and any further discussion of VA's responsibilities is not necessary for this case. Merits of the Claim The Veteran contends that service connection is warranted for tinnitus, as it relates back to an in-service acoustic trauma. Service connection is established where a particular injury or disease resulting in disability was incurred in the line of duty in active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). A veteran may be granted service connection for any disease initially diagnosed after discharge, but only if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In making all determinations, the Board must fully consider all lay assertions of record. A layperson is competent to report on the onset and continuity of observable symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Veteran claims that he is entitled to service connection for his current tinnitus as it relates to an acoustic trauma he suffered while in service. He was diagnosed with tinnitus in October 2012. He has described the relevant acoustic trauma as both a rocket explosion and mortar fire while serving in Vietnam, happening in either 1967 or 1968. He also worked as part of the "Seabees," a Navy construction unit. The Veteran's STRs are silent on any treatment received subsequent to an acoustic trauma. They do contain reference to four visits in 1966 for treatment of a plugged ear that was causing the Veteran hearing problems. They also contain an April 1968 reference for treatment of ear pain and a June 1968 diagnoses of external otitis of the right ear. In October 2012, the Veteran received a VA Compensation and Pension Examination for tinnitus and hearing loss. The examiner reviewed the Veteran's claims file before the examination. The Veteran reported that he did not wear ear protection in service, but did do so while working as an electrician, as well as when hunting. The examiner noted that the Veteran reported suffering from tinnitus, but opined that the tinnitus was less likely than not caused by or a result of military noise exposure. The examiner's reasoning was that there was no evidence to suggest acoustic trauma in the Veteran's STRs; the Veteran possessed normal hearing sensitivity in both ears for VA rating purposes; no physical trauma from alleged close proximity mortar explosion was reported; the Veteran made statements about a long history of occupational noise exposure as an electrician working around construction sites; and that the Veteran stated he could not pinpoint the specific onset of the tinnitus, only stating that he had it "for many years." Because of all of these factors, the examiner concluded that noise exposure, aging, and health conditions occurring since service could not be ruled out as possible contributing factors to the Veteran's tinnitus. However, the examiner did not consider and comment on the Veteran's in-service ear treatment documented in his STRs. For this reason, the Board found that this examination was inadequate to determine the etiology of the Veteran's tinnitus. The Veteran's claim was sent to a VHA audiologist for another opinion and received it in October 2013. The examiner reviewed the claims file before rendering the opinion that it was at least as likely as not (50/50 probability) that the Veteran's tinnitus was caused by or a result of military service. This review considered all of the evidence, including the in-service ear treatment. The examiner highlighted the Veteran's competent reports of in-service noise exposure in the form of the rocket or mortar fire, as well as the moderate probability that the Veteran experience further exposure as a mechanic. The Veteran has a current diagnosis of tinnitus and provided competent and credible narrative regarding instances of in-service acoustic trauma. In addition, a VA examiner provided a positive VHA opinion linking his current condition to his time in service. In view of the foregoing, the Board finds that the evidence is at least in equipoise regarding the question of whether the Veteran's current bilateral hearing loss and tinnitus had their onset in service. Accordingly, applying the benefit of the doubt doctrine, all doubt with respect to this claim is resolved in favor of the Veteran and his claim for entitlement to service connection for tinnitus is granted. See 38 C.F.R. § 3.102 (2013); See also Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). ORDER Entitlement to service connection for tinnitus is granted. ____________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs